JUDGMENT : Ravindra Maithani, J. 1. Both the appeals are filed against the common judgment, therefore, they are disposed of together by this judgment. 2. Present appeals are preferred against the judgment and order dated 07.11.2013/13.11.2013 passed in Sessions Trial No. 29 of 2008, State Vs. Suraj Pal Singh and others by the court of District and Session Judge, Pauri Garhwal. In the Session Trial, nine accused were tried, except appellants all others have been acquitted. Appellants Suraj Pal Singh and Pradeep Singh have been convicted under Section 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 25000/- each and in default, it has further been ordered that appellants shall undergo simple imprisonment for a period of one year. 3. Facts necessary for disposal of the appeals are briefly stated as under: (i) 15.03.2006 was the day of Holi festival. Deceased Prem Singh was in his house. His house was adjacent to the house of appellants Suraj Pal Singh and Pradeep Singh. Appellant Suraj Pal Singh was abusing deceased Prem Singh from his house. Both were abusing each other. Suddenly appellant Suraj Pal Singh pushed deceased Prem Singh. He fell down. His head hit on a large stone. He was lying there for about two hours. His wife Beena Devi tried to lift him but he was dead. Nobody came to help Beena Devi. In the evening, at about 04.00 p.m. mother of the deceased returned to her house. She was narrated the whole story by Beena Devi. On 16.03.2006 at about 02.00 – 03.00 p.m. the deceased was cremated by his mother. This matter was reported by Beena Devi, on 16.03.2006 at about 05.00 p.m. at Revenue Police Chowki, Indiakot, Malla 4, Lansdowne, District Pauri Garhwal. Chik FIR Exhibit A1 was prepared. A case under Section 302 read with 201 IPC was lodged against the appellant Suraj Pal Singh and others. Extract of General Diary is Exhibit A2. PW3 Yogamber Singh carried out the initial investigation. He prepared the site plan Exhibit A3. Subsequent to it, investigation was transferred to PW 5 Maharaj Singh, who recorded the statements of witnesses and prepared site plan Exhibit A 7. (ii) Prosecution story, which was unfolded during trial, was different than what was reported by Beena Devi, to PW 3 Yogamber Singh. He prepared the site plan Exhibit A3. Subsequent to it, investigation was transferred to PW 5 Maharaj Singh, who recorded the statements of witnesses and prepared site plan Exhibit A 7. (ii) Prosecution story, which was unfolded during trial, was different than what was reported by Beena Devi, to PW 3 Yogamber Singh. At trial, according to the Prosecution, on 15.03.2006, Suraj Pal Singh and deceased Prem Singh were quarrelling in the morning. At 02.00 p.m. on that day deceased Prem Singh was going to market to purchase Chappal for him. As soon as he reached at the house of Mangal Singh, appellant Suraj Pal Singh hit him with Khunkhari (a sharp edged weapon). Appellant Suraj Pal Singh gave further blows of Khunkhari at his feet. Meanwhile, PW1 Smt. Kusum Devi intervened. She snatched Khunkhari from the hands of appellant Suraj Pal Singh but meanwhile appellant Pradeep Singh took away Khunkhari from her and gave it again to appellant Suraj Pal Singh. Thereafter, appellant Suraj Pal Singh indiscriminately attacked deceased Prem Singh with Khunkhari. PW1 Kusum Devi felt unconscious. When her mother-in-law reached there, she narrated the entire story to her. Her mother-in-law took her back home. In this matter, after investigation charge-sheet was submitted against 11 persons by PW5 Maharaj Singh. It included appellants and nine other persons. Those nine persons include wife of deceased Beena Devi and mother of the deceased Kapotari Devi. Beena Devi did not appear during trial, therefore, her case was separated. One of the accused, Than Singh died, therefore, case against him stood abated on 05.10.2013. Charge under Section 302/34 IPC was levelled against the appellants. Other co-accused were charged for the offence under Section 201 IPC. Appellants denied the charges and claimed trial. Prosecution examined five witnesses. (iii). Appellants were examined under Section 313 of the Code of Criminal Procedure, 1973. According to them, they have been falsely implicated. According to appellant Suraj Pal Singh, appellant Pradeep Singh is his real brother, who was a witness in a case against deceased Prem Singh, hence, they have been falsely implicated. In defence, appellant Pradeep Singh filed a copy of charge sheet in case crime no. 1 of 2012, Revenue Chowki, Indiakot, Malla 4, Lansdowne, Pauri Garhwal. 4. According to appellant Suraj Pal Singh, appellant Pradeep Singh is his real brother, who was a witness in a case against deceased Prem Singh, hence, they have been falsely implicated. In defence, appellant Pradeep Singh filed a copy of charge sheet in case crime no. 1 of 2012, Revenue Chowki, Indiakot, Malla 4, Lansdowne, Pauri Garhwal. 4. On the basis of evidence, material available on record and after hearing learned counsel for the parties, learned court below convicted and sentenced the appellants, as stated hereinabove. Feeling aggrieved, appellants have preferred these two appeals. 5. Heard Mr. R.P. Nautiyal, Sr. Advocate assisted by Mr. Prashant Khanna, Advocate for the appellants and Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand/respondent. 6. On behalf of the appellants, it is argued that it is a case of no evidence. First information report lodged by Beena Devi has been proved by the prosecution. At trial entirely different prosecution story has been developed. The place of occurrence is not established. On the one hand, according to PW3 Yogamber Singh, place of occurrence was in front of the house of deceased but PW5 Maharaj Singh, Investigating Officer, shows place of occurrence in front of the house of Mangal Singh. FIR is delayed. Postmortem examination was not conducted. There is no recovery of any instrument of attack. Statement of PW1 Kusum Devi, the only eye witness is not reliable. She did not lodge FIR. Her statement was recorded by the Investigating Officer almost after one month. Statement of PW4 Subhadhra Devi, another eye witness, is also not reliable. There are inconsistencies and contradictions in the prosecution story. Prosecution utterly failed to prove the charge against the appellants. Appellants ought to have been acquitted of the charges. Trial Court committed error in the convicting the appellants, therefore, it is argued that the appeals deserve to be allowed. 7. On the other hand, Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand argued that it is a case of direct evidence. PW1 Kusum Devi and PW4 Subhadhra Devi are eye witnesses. Their statements are reliable. Statement of PW2 Kapotari Devi also supports the statement of PW1 Kusum Devi. It is argued that in fact PW 3 Yogamber Singh, the first Investigating Officer did not proceed properly, therefore, investigation was transferred to PW5 Maharaj Singh. PW1 Kusum Devi and PW4 Subhadhra Devi are eye witnesses. Their statements are reliable. Statement of PW2 Kapotari Devi also supports the statement of PW1 Kusum Devi. It is argued that in fact PW 3 Yogamber Singh, the first Investigating Officer did not proceed properly, therefore, investigation was transferred to PW5 Maharaj Singh. Prosecution has been able to prove its case beyond reasonable doubt against the appellants and the present appeals deserve to be dismissed. 8. PW1 Kusum Devi is the sister-in-law of deceased, (wife of younger brother of deceased). According to her, on 15.03.2006 at about 09.00 a.m., appellant Suraj Pal Singh and deceased Prem Singh were fighting. At about 02.00 p.m. when deceased went to market, appellant Suraj Pal Singh attacked him with Khunkhari in front of the house of Mangal Singh. Deceased was running. Appellant Suraj Pal Singh attacked again at his feet. This witness reached there and questioned Suraj Pal Singh as to what he was doing and she snatched Khunkhari from appellant Suraj Pal Singh. But, in the meantime appellant Pradeep Singh snatched Khunkhari from this witness and gave it again to appellant Suraj Pal Singh. Thereafter, appellant Suraj Pal Singh indiscriminately attacked Prem Singh. This witness became unconscious. Her mother-in-law reached there. She narrated the story to her. Her mother-in-law took her back home. According to this witness, when this incident occurred wife and mother of the deceased were not at home. 9. PW2 Kapotari Devi is the mother-in-law of PW1 Kusum Devi. She has stated that on the date of incident at about 02.00 p.m. when she was returning from fields, she saw appellant Suraj Pal Singh washing his hands and blood stained Khunkhari at the natural water source in the village. This witness came to her house, there was none in the house. She proceeded towards cowshed and saw the deceased in a pool of blood. She also saw PW1 Kusum Devi, her daughter-in-law lying there with her eyes closed. She brought PW1 Kusum Devi back home and asked what had happened. PW1 Kusum Devi narrated the entire story to this witness. PW2 Kapotari Devi also states that at that time wife and mother of the deceased were not at their home. This witness narrated the story to the mother of deceased on the same day in the evening at about 06.00 p.m. 10. PW4 Subhadra Devi is another eye witness. PW1 Kusum Devi narrated the entire story to this witness. PW2 Kapotari Devi also states that at that time wife and mother of the deceased were not at their home. This witness narrated the story to the mother of deceased on the same day in the evening at about 06.00 p.m. 10. PW4 Subhadra Devi is another eye witness. According to her, on the date of incident, she saw that deceased Prem Singh was running and appellant Suraj Pal Singh was chasing him. In her chowk (courtyard), appellant Suraj Pal Singh attacked at his hand with Khunkhari. Deceased was running towards his house. Appellant Suraj Pal Singh followed him. Out of fear, she closed the door and she does not know what happened, thereafter. 11. PW3 Yogamber Singh is the first Investigating Officer, who lodged the matter reported by the wife of deceased. He lodged the FIR against Suraj Pal Singh and others. This witness, who prepared and proved the chik FIR Exhibit A1, extract of general diary Exhibit A2 and site plan of the place of occurrence, Exhibit A3, has stated the story, narrated to him by the wife of the deceased, which is quite different. She had not stated that her husband was attacked by anyone with Khunkhari. 12. PW5 Maharaj Singh is the final Investigating Officer. He prepared the site plan Exhibit A7 and submitted the charge sheet. 13. Prosecution has proved FIR lodged by Beena Devi, wife of the deceased, which is Exhibit A1. Based on it, case was lodged. PW3 Yogamber Singh, who has prepared the site plan, Exhibit A-3 has also been proved by the prosecution. 14. According to the FIR, on the date of incident, deceased Prem Singh and appellant Suraj Pal Singh were abusing each other and suddenly appellant Suraj Pal Singh pushed deceased Prem Singh. Deceased Prem Singh fell on the ground. His head hit with a huge stone. He sustained injuries and remained in that position for about 2 hours and subsequently, he died. His cremation was done by his mother on 16.03.2006 at 02.00 p.m. FIR was lodged by Beena Devi at 05.00 p.m. in the evening. 15. Argument has been advanced that the place of occurrence is not established. If PW1 Kusum Devi had seen the incident, she would have filed FIR, which she did not; her statement was recorded after a long period during investigation. 15. Argument has been advanced that the place of occurrence is not established. If PW1 Kusum Devi had seen the incident, she would have filed FIR, which she did not; her statement was recorded after a long period during investigation. It doubts the prosecution story. 16. This is a criminal case. Prosecution has to prove its case beyond reasonable doubt. Suspicion howsoever, grave it may be, cannot be a basis for conviction. According to chik FIR, Exhibit A1, place of incident was 3 kms. towards south from Revenue police station. PW4 Subhadra Devi in her examination stated that revenue police station is situated in their village itself. Whatever way incident might have occurred, the question is as to why FIR was not lodged on the same day when deceased Prem Singh died? Had it been done, perhaps the Investigating Officer would have been in a position to collect the evidence in the matter. PW1 Kusum Devi is also one of the relatives of the deceased. Why she did not lodge the FIR. In her examination conducted on 14.10.2013 she has stated that she sent Beena Devi, wife of the deceased to call Revenue Inspector. According to her, she had not instructed her to lodge the report. PW1 Kusum Devi expressed ignorance as to on whose instance Revenue Inspector visited the village next day. 17. PW2 Kapotari Devi is another relative of deceased. She in her examination (at page no. 4) has categorically stated that she had sent Beena Devi, wife of deceased, for lodging the FIR to police station. According to her, Revenue Inspector visited the village 10 – 15 days after the incident. 18. PW1 Kusum Devi, has (page no. six of her statement) at one stage, stated that she did not meet Revenue Inspector but in the next paragraph, she said that after 10-12 days from the date of incident, Revenue Inspector visited their house. It may be noted that at one stage PW1 Kusum Devi has stated that the Revenue Inspector visited the village next day. These are big contradictions specifically in view of the fact that PW1 Kusum Devi’s statement was recorded by the Investigating Officer on 26.04.2006. It is after more than a month after the incident. 19. Now the question is that neither PW1 Kusum Devi nor PW2 Kapotari Devi lodged the FIR. These are big contradictions specifically in view of the fact that PW1 Kusum Devi’s statement was recorded by the Investigating Officer on 26.04.2006. It is after more than a month after the incident. 19. Now the question is that neither PW1 Kusum Devi nor PW2 Kapotari Devi lodged the FIR. Both of them sent Beena Devi, wife of deceased at Revenue Police Station to lodge the report. According to PW2 Kapotari Devi, she had directed Beena Devi to lodge the FIR. None of the witnesses namely PW1 Kusum Devi, PW2 Kabotari Devi, PW4 Subhadhra Devi supported the version of FIR, Exhibit A1. Why is it so? Why statement of PW1 Kusum Devi was not recorded by the Investigating Officer immediately after the incident when the report was lodged. If PW1 Kusum Devi had seen the incident (in fact, according to the prosecution she is the sole eye witness, who had seen the incident) why Investigating Officer waited for about one and a half month to record her statement. It definitely makes the statement of PW1 Kusum Devi doubtful. In this case FIR is delayed. Version of FIR is not supported by the prosecution. In the court entirely new story has been developed which is inconsistent to the FIR. Statement of PW1 Kusum Devi is not inspiring confidence. In this case interestingly Beena Devi, wife of deceased; Kabotari Devi, wife of Tara Singh i.e. wife and mother of the deceased respectively, were arrayed as accused under Section 201 IPC. 20. Where is the place of occurrence, according to the FIR, it was in the house of the deceased Prem Singh. According to PW1 Kusum Devi, it is the house of Mangal Singh and according to PW4 Subhadhra Devi, it is her chowk (courtyard) where deceased was attacked by appellant Suraj Pal Singh. There is one more place where the dead body was allegedly lying. PW1 Kusum Devi when questioned (at page 6 of her statement) stated that she does not know as to how long dead body of Prem Singh remained in her house and for how long it remained at the cowshed. In fact, PW 4 Subhadhra Devi (at page two of the examination in para two) has categorically stated that the dead body was taken for cremation from the cowshed. How the dead body reached at cowshed is not known. 21. In fact, PW 4 Subhadhra Devi (at page two of the examination in para two) has categorically stated that the dead body was taken for cremation from the cowshed. How the dead body reached at cowshed is not known. 21. PW3 Yogamber Singh, the first Investigating Officer has proved the site plan Exhibit A3. It shows that the dead body was lying in the house of Prem Singh. This witness in cross examination stated that no witness had told it to him that deceased Prem Singh was attacked with any Khunkhari. PW5 Maharaj Singh, final Investigating Officer. He has been questioned about site plan, in examination recorded on 15.10.2013 this witness would say that place of incident is the courtyard of Mangal Singh. He has not stated about cowshed. In fact, PW1 Kusum has also not stated as to how dead body reached at cowshed. Cowshed has been shown by PW5 Maharaj Singh in the site plan - Exhibit A7. It is at some distance from the house of Mangal Singh. It also creates doubt. Place of occurrence is not established. It makes prosecution case doubtful. 22. According to FIR, appellant Suraj Pal Singh pushed Prem Singh. He fell down. His head hit on a huge stone, which caused his death. According to PW1 Kusum Devi, appellant Suraj Pal Singh attacked Prem Singh with Khunkhari and she tried to intervene and snatched Khunkhari from appellant Suraj Pal Singh. It is appellant Pradeep Singh, who again snatched Khunkhari from this witness and gave it to appellant Suraj Pal Singh. Name of Pradeep Singh, as a person giving Khunkhari to the appellant Suraj Pal Singh, was for the first time taken by PW1 Kusum Devi in the court when she was examined on 05.04.2013. She did not tell it to the Investigating Officer. She and Investigating Officer both have admitted it. This is another very weak kind of evidence against appellant Pradeep Singh. There is no corroboration on this aspect. Prosecution witnesses have not been able to tell as to who took away the dead body of deceased and who cremated him. Investigating Officer had no chance to get the postmortem of the deceased conducted because as stated the information was given after cremation. There is no recovery of any weapon, which might have been used in the incident. 23. Prosecution witnesses have not been able to tell as to who took away the dead body of deceased and who cremated him. Investigating Officer had no chance to get the postmortem of the deceased conducted because as stated the information was given after cremation. There is no recovery of any weapon, which might have been used in the incident. 23. In the instant case, prosecution came up with two stories one in FIR, Exhibit A1 which is proved by the prosecution and another by way of statement of PW1 Kusum Devi. Both are contradictory. Statement of PW1 Kusum Devi is not wholly reliable. Statements of PW4 Subhadhra and PW2 Kabotari Devi are also not inspiring confidence. Implication of appellant Pradeep Singh that he assisted Suraj Pal Singh in killing Prem Singh has for the first time been made by PW1 Kusum in the court. Place of occurrence has not been established. How did the deceased was cremated, there is no evidence. There is no recovery of any instrument or weapon of the offence. 24. In view of the foregoing discussion, this Court is of the view that in fact, prosecution has not been able to prove its case beyond reasonable doubt. Both the appellants ought to have been acquitted of the charge levelled against them. Learned trial court committed an error in convicting the appellants of the charge, therefore, appeals deserve to be allowed. 25. Accordingly, both the appeals are allowed. Impugned judgment & orders dated 07.11.2013/13.11.2013 are set aside. Both the appellants Suraj Pal Singh and Pradeep Singh are acquitted of the charge under Section 302/34 IPC. 26. The appellants are on bail. They shall furnish a personal bond and two sureties, each of the like amount, by each of them, to the satisfaction of the court concerned under Section 437A of the Code, within a month from today. 27. Let a copy of the judgment alongwith the Lower Court Record be transmitted to the court below for compliance.